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SVKMS

NMIMS SCHOOL OF LAW

PROJECT SUBMITTED ON;


CONFLICT BETWEEN RIGHT TO PRIVACY AND FREEDOM TO PUBLISH
IN COMPLIANCE TO THE PARTIAL FULFILLMENT OF THE MARKING SCHEME,
FOR TRIMESTER VII OF 2016-2017, IN THE SUBJECT OF:
INTERPRETATION OF STATUTE AND PRINCIPLES OF LEGISLATIONS
SUBMITTED TO FACULTY:
ISHNOOR ARORA

SUBMITTED BY:
AASHI SIROHIWALA
B.B.A. LL.B. (HONS.)
YEAR III
ROLL NO. A002
1

INDEX
Sr. No.
1.
2.
3.
4.
5.

6.

Particulars
Abbreviations
Table of Cases
Table of Statutes
Chapter 1: Introduction
Chapter 2: Case Analysis of the Auto Shankar Case

Pg.No.
3.
4.
4.
5.
6.

2.1 Facts

6.

2.2 Issues

6.

2.3Contentions

6.

2.4 Judgement

7.

2.5 Conclusion

7.

Chapter 3: Case analysis of K.J. Doraisamy vs. The Assistant

11.

General Manager

7.

3.1Facts

11.

3.2 Issue

11.

3.3 Conclusion

11.

Chapter 4: Case Analysis of R. Sukanya vs. R. Sridhar and

15.

Ors
4.1 Facts

15.

4.2 Issue

15.

4.3Contentions

15.

4.3 Conclusion

15.

8.
9.
10.

Chapter 5: Conclusion
Chapter 6: Suggestions
Bibliography

20.
26.
28.

ABBREVIATIONS

AIR

All India Reporter

Art.

Article

IAS

Indian Administrative Service

IPS

Indian Police Service

MLJ

Malayan Law Journal

RTI

Right to Information

Sarfaesi act

The Securitisation and Reconstruction of Financial Assets and Enforcement of


Security Interest Act, 2002

T.N.

Tamil Nadu

TABLE OF CASES
Babu Lal v. Hazari Lal Krishori Lal, (1982) 1 SCC 525
Francis Coralie Mullin V The Administrator, Union Territory of Delhi MANU/SC/0517/1981
Govind v. State of Madhya Pradesh , MANU/SC/0119/1975
In Campell v. Mirror Group Newspapers ltd [2004] 2 AC 415
K.J. Doraisamy vs. The Assistant General Manager, (2006)4 MLJ1877
Mr. X v. Hospital Z , MANU/SC/1121/2002
Olmstead v. US 277 US 438
R. Rajagopal v. State of T.N, 1995 AIR 264
R. Sukanya vs. R. Sridhar and Ors, AIR 2008 Mad244
Shankarlal Agarwalla vs State Bank of India, AIR 1987 Calcutta 29
Sharda vs. Dharmpal, (2003) 4 SCC 493

TABLE OF STATUTES
Code of Criminal Procedure, 1973
Constitution of India
Hindu Marriage Act, 1955
Indecent Representation of Women (Prohibition Act), 1980
Special Marriage Act, 1954
The Securitisation and Reconstruction of Financial Assets and Enforcement of Security
Interest Act, 2002

CHAPTER 1: INTRODUCTION
Freedom to publish includes right of a median/ organization/ individual to publicize
information and this right is given under Article 19 (1) (a) and under other Statues. The right
to privacy on the other hand is an important human right. Both these rights are not absolute
and are subject to restrictions.1 Freedom of speech and expression in the context of public
interest is the Press - the print media and the broadcast media. It has taken the responsibility
to inform the public about the functioning of the public figures and also individuals. This
includes all other matters in which public have a right to know. Right to discussion and
criticize forms an active part of this right. Privacy means the private pursuits of a person
which encompasses his right to be free from intrusion or publicity. It means to be out of the
public eye while enjoying the little joys of life with his or her family. It is an integral part of a
persons personality and therefore difficult to define its boundaries in legal terms. While the
right to freedom of press has undergone great progress and developed today in leaps and
bounds, the equal and opposite right of an individual to be protected against unwarranted
intrusions by various publications into their privacy finds no established independent place in
the Indian Constitution. Both are important rights. One right gives a person to express his/her
opinion and may be in the general interest of the society while the other protects a privacy of
a person and it is defined as a right to be left alone. Considering this there are many cases
where conflict arises between the same. The situation needs to be balanced in these kinds of
cases and the ultimate decision in the end lies in the hands of the Honourable Judge or the
bench who decide ultimately, which right should be given precedence depending upon the
circumstances of the particular case. This paper attempts to analyze how the Courts have
struck a balance between the two rights and how they have harmoniously interpreted freedom
to publish and Article 21 in order to give meaning to both. This paper will look at the way
courts have balanced these interests, proposing a number of factors that need to be taken into
account.
The researcher will first study at length cases in which the cases in detail and then analyze if
the present cases advance the goals of justice.

1 Thomson, Judith Jarvis. "The right to privacy." Philosophy & Public Affairs(1975): 295-314.
5

CHAPTER 2: CASE ANALYSIS OF THE AUTO SHANKAR


CASE
R. Rajagopal v. State of T.N2
2.1 FACTS: The petitioners in the case were a printer and associate editor of a Tamil
magazine from Madras. The case revolves around the publishing of the autobiography written
by the prisoner Auto Shankar, who had been placed in jail for committing multiple murders.
The autobiography contained proof of involvement of many IAS, IPS officers in the crimes
that he committed. Before commencing the serial publication of the autobiography in their
magazine, the petitioner announced an issue that very soon the magazine would be coming
out with a sensational life history of Auto Shankar. Shankar had initially requested that the
magazine print his autobiography, but after being tortured by police officers who had read
that the magazine will be carrying the piece, he requested that his story not be published. The
publishers held that it was their right to publish the autobiography. The IPS and IAS officers
on the other hand claimed that Auto Shankar was trying to defame the officers and this would
intrude their right to privacy as well as the right to privacy of Auto Shankar.
2.2 ISSUE: Whether a citizen of this country can prevent another person from writing his
life-story or biography? Does such unauthorised writing infringe the citizen's right to
privacy? Whether the freedom of press guaranteed by Article 19(1)(a) entitle the press to
publish such unauthorised account of a citizen's life and activities and if so to what extent and
in what circumstances?
2.3 CONTENTIONS:
-The petitioners assert the freedom of press guaranteed by Article 19(1)(a), which, according
to them, entitles them to publish the said autobiography. It is submitted that the condemned
prisoner has also the undoubted right to have his life-story published and that he cannot be
prevented from doing so.
-The respondents contend that the unauthorized writing and publishing of the autobiography
infringe the right to privacy of the respondents.

2 R. Rajagopal v. State of T.N ,1995 AIR 264


6

2.4 JUDGEMENT:
Whether an individual can prevent another individual/press/media organization from writing
his life story? Does writing the story without consent violate the individuals right to privacy?
The Court does not mention that the person whose information is sought to be published has a
right to prevent the publication, especially when it uses the phrase But if they go beyond that
and publish his life story, they may be invading his right to privacy and will be liable for the
consequences in accordance with law. The Court says that writing the story of somebodys
personal matters without his/her consent would violate his/her right to privacy (unless the
information has been taken from public records) but seems to suggest that whatever remedy
the individual has with regard to his privacy in such circumstances arises after the event has
occurred.
Does the freedom of press guaranteed by Article 19(1) (a) entitle the press to publish an
account of an individual's life and activities without consent, and if so to what extent and in
what circumstances?
The Courts held that the press has the right to publish the stories about individuals as long as
the information published has been obtained from public records.
In this case the courts allowed the publication the autobiography. It upheld the petitioners
have the right to publish, what they allege to be the life story/ autobiography of the Auto
Shankar insofar as it appears from publics records even without his consent and if they
publish something beyond the life story they will be invading his right to privacy.
2.5 CONCLUSION: In this case the courts have laid down three basic principles. There is a
conflict between right to privacy and freedom of speech and the courts have used harmonious
rule of interpretation and tried to lay down principles in order to give effect to both the
statutes. The interpretation consistent of all the provisions of the statute should be adopted. In
the case in which it shall be impossible to harmonize both the provisions, the courts decision
regarding the provision shall prevail. When there are, in an enactment two provisions which
cannot be reconciled with each other, they should be so interpreted, that if possible, effect
should be given to both.

The first principle which was laid down was that,


The right to privacy is implicit in the right to life and liberty guaranteed to the citizens of
this country by Article 21. It is a right to be let alone". A citizen has a right to safeguard
the privacy of his own, his family, marriage, procreation, motherhood, child bearing and
education among other matters. None can publish anything concerning the above matters
without his consent - whether truthful or otherwise and whether laudatory or critical. If he
does so, he would be violating the right to privacy of the person concerned and would be
liable in an action for damages. Position may, however, be different, if a person voluntarily
thrusts himself into controversy or voluntarily invites or raises a controversy.
The courts thus used the rule of reasonable construction which states that the exclusive
reliance on bare dictionary meaning of words may not necessarily assist a proper
construction of the statutory provision in which the words occur while interpreting the scope
of right to life and personal liberty, 21 as it recognized right to privacy as a implicit part of
Article 21. It went on to further give a liberal and reasonable construction to the right of
privacy and recognized that a citizen has a privacy of his own, his family, marriage,
procreation, motherhood, child bearing and education among others. The rule of reasonable
interpretation states that exclusive reliance on the bare dictionary meaning of words may not
necessarily assist proper construction of the statutory provision while liberal interpretation
means everything is to be done in advancement of remedy that can be done consistently with
any construction of statute. It said that none can publish anything concerning these matters
without his consent whether truthful or otherwise. But it said that the position may however
be different if a person voluntarily thrusts himself in a controversy and voluntarily invites or
raises controversy. From this we can see that the courts have tried to give a harmonious
interpretation. On one hand it recognized right to privacy and said that non can publish
anything without ones consent but on the other hand it said that it would be different if one
himself invites controversy. Therefore trying to give effect to both right to privacy and
freedom to publish. If we look it the other way we can also say that the court has not given a
very liberal interpretation to the right to privacy. It has put some restrictions.
The second principle laid down by the courts was that
The rule aforesaid is subject to the exception, that any publication concerning the
aforesaid aspects becomes unobjectionable if such publication is based upon public
8

records including court records. This is for the reason that once a matter becomes a matter
of public record, the right to privacy no longer subsists and it becomes a legitimate subject
for comment by press and media among others. We are, however, of the opinion that in the
interest of decency [Article 19(2)] an exception must be carved out to this rule, viz., a
female who is the victim of a sexual assault, kidnap, abduction or a like offence should not
further be subjected to the indignity of her name and the incident being publicised in
press/media.
The court again tried to give harmonious construct both the rights. It said that though a citizen
has the right to privacy but such right wont be available if such a publication is based on
public records. It said the right to publish will subsist if the matter is based on public records
and the media and the press can comment on the same. However the researcher disagree with
this interpretation. The right to privacy should be given a more liberal interpretation. Even if it
a matter based on public records, the matter if is relating to ones private life should not be
allowed to be published.
The court further went on to state that in case of public official, the right to privacy was not
available with respect to their acts and conduct relevant to the discharge of their official duties
even if the publications is based upon facts which are not true. It has again given a very wide
interpretation to the right to freedom of speech and expression and said the defendant (media/
press/ individual) should only prove that it had reasonably verified the facts and its not
important to prove that whatever he has written is true. In this principle the court has failed to
harmoniously construct both the rights. It has given a very wide and liberal interpretation of
freedom of speech and expression and has forgotten about the reasonable restriction. It said
that if the publication was proved to be false once published, the defendant would be liable for
damages. It did not appreciate the very fact of reasonable restriction of defamation put on
right to publish. It also did not realize the fact that the reason why right to privacy was
recognized and adopted was to suppress the invasion of privacy. The courts did not apply the
mischief rule or object of this right. The purpose would be defeated if the press went on the
publish something even if untrue and then the plaintiff would have the right for damages, for
already there is an invasion to his right to privacy. It however said that matters are not related
to discharge of official duties, the officials will enjoy the same right as that of private citizens.
They also said that governmental bodies have not right to maintain the suits for damages for
defaming them.

The judgement has given a very liberal interpretation to freedom of speech and expression.
The courts said that there is no law to prohibit or to impose a prior restraint upon media or
press.
In this case the courts allowed the publication the autobiography. It upheld the petitioners
have the right to publish, what they allege to be the life story/ autobiography of the Auto
Shankar insofar as it appears from publics records even without his consent and if they
publish something beyond the life story they will be invading his right to privacy. They failed
to recognize the fact that it was not proven that the auto biography was written by him and
even if they matter is taken from public records publishing about someones right would lead
to his infringement of right to privacy, giving a very liberal interpretretion to right to publish.
So far as the right to privacy of public officers are concerned, the courts tried to give a
harmonious interpretation of right of the press/ media to publish and the rights of privacy of
these public officers as it said the they cannot publish only things related to the discharge of
their official duties. But the courts have failed to realize that even if a matter is of public
record, publishing it might lead to someones privacy.
The courts recognized the fact that there should be proper balancing of freedom of press and
the said laws consistent with the democratic way of life ordained by our constitution. Thus
recognizing the fact while interpreting conflicting rights there should be a harmonious
construction to the same and a proper balance should be made in order to give effect to both.
The courts further said that the Respondents ( officials) cannot take upon themselves the
obligation of protecting the right to privacy of Auto Shankar and that there is no rule which
authorizes the officials to do so. The court did not take into consideration that the very
object and mischief of the right to privacy. There was no proof that the auto biography was
written by the Auto Shankar.

10

CHAPTER 3: CASE ANLYSIS OF K.J. DORAISAMY VS.


THE ASSISTANT GENERAL MANAGER
K.J. Doraiswamy v. The Assistant General Manager 3
3.1 FACTS: The petitioner borrowed a term loan of Rs. 6 lakhs from the State Bank of
India on 15.5.2001. On the petitioner committing default in payment of the monthly
instalments, the Bank issued a notice under Section 13(2) of the Securitisation and
Reconstruction of Financial Assets and Enforcement of Security Interest Act, on 6.2.2006.
Subsequently, the Bank also issued a notice dated 22.5.2006, threatening to recover the
loan by enforcing the security and bringing it to sale by publishing the details of the
properties as well as the photographs of the borrower and the surety in Tamil and English
Newspapers. Contending that the publication of his photograph and the photograph of the
surety would be violative of Article 21 of the Constitution which includes right to privacy,
the petitioner a writ petition, seeking a Writ of Mandamus, directing the respondents to
forbear from publishing the photographs in any Newspapers or Magazines.
3.2 ISSUE: Whether a Bank/Financial Institution, has the right to publish the photograph of
the defaulting borrower in Newspapers, and if such publication offends right to privacy.
The right of the Bank to adopt any lawful method for the recovery of its dues, including the
publication of the photograph of the defaulter has come directly into conflict with the right to
privacy and dignity of the borrower, which has now come to be recognised, to some extent, as
part of the right to life guaranteed under Article 21 of the Constitution. It is this tension
between the right of the Bank and the right to privacy, that is sought to be resolved in this
writ petition.
3.3 CONCLUSION:

In this judgement the Court held that the Bank had the right to

publish the photograph of the defaulter under the Securitisation and Reconstruction of
Financial Assets and Enforcement of Security Interest Act, 2002. It went on to explain the
purpose of the Act.

The Court in this judgement explained the purpose of the

Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest


Act, 2002. It stated that in the statements and objectives of the Act, the Law makers took
note of the fact that the Banking and Financial Sector in our country do not have a level
3 K.J. Doraisamy vs. The Assistant General Manager, (2006)4MLJ1877
11

playing field as compared to other participants in the Financial Markets in the World and
that our existing legal frame work relating to commercial transactions has not kept pace
with the changing commercial practices and financial sector reforms. Therefore, obviously
with a view to keep pace with the changing commercial practices and financial sector
reforms, the Banks appear to be adopting new techniques, one of which is the issue on
hand viz., a threat to publish photograph of the defaulters in Newspapers. It thus tried to
explain the object and the purpose of the Act. While upholding the right to publish under
sarfaesi Act which was in conflict with the petitioners right to privacy, it used the mischief
rule which states that if there is any confusion or conflict the purpose of the Act should be
considered.
It cited many judgements like Mr.X v. Hospital Z4, R. Rajagopal v. State of Tamil Nadu5 ,
Francis Coralie Mullin V. The Administrator, Union Territory of Delh 6, Govind v. State of
Madhya Pradesh7 among others and said how in these judgements did not put a stamp on
such an absolute or in violable right. The Court at length discussed how right to privacy is
important but at the same when it has come in conflict with other rights, the courts have to
give a harmonious interpretation to both and the case should ultimately be decided at the
interest of the public at large. It further went on to cite a landmark judgement of the Supreme
Court, Sharda vs. Dharmpal8 as follows:"The right to privacy in terms of Article 21 of the Constitution is not an absolute right."
"If there were a conflict between the Fundamental Rights of two parties that right which
advances public morality would prevail."
The court went on to explain that if there is a conflict between two rights and if it not possible
to give harmonious interpretation then the one which advances the goal of justice should
prevail.

4 Mr.X v. Hospital Z , MANU/SC/1121/2002


5 R. Rajagopal v. State of Tamil Nadu , 1995 AIR 264
6 Francis Coralie Mullin V. The Administrator, Union Territory of Delhi , MANU/SC/0517/1981
7.Govind v. State of Madhya Pradesh, MANU/SC/0119/1975
8 Sharda vs. Dharmpal , (2003) 4 SCC 493
12

The judgement recognized the duty of the bank to maintain secrecy but it said it can be
superceded by a larger public interest. Shankarlal Agarwalla vs State Bank of India 9 in
which it was held that the banker has an obligation to secrecy and that the banker will not
divulge to third person without the express or implied consent of the customer either the state
of the customer's account or any of his transactions with the bank unless the banker is
compelled to do so by order of a Court or the circumstances give rise to a public duty of
disclosure or protection of the banker's own interest requires it.
It went on to explain the provision and interpreting the provision of the said Act which
allows the publication of the picture. It stated that Section 13(4) of the Sarfaesi Act
authorizes the Bank to take possession of the secured asset and sell it. The procedure for
such sale is prescribed under Rule 8 of the Security Interest (Enforcement) Rules, 2002.
Sub-rule (1) of Rule 8 reads as under:
Sale of immovable secured assets.--(1) Where the secured asset is an immovable property,
the authorised officer shall take or cause to be taken possession, by delivering a
possession notice prepared as nearly as possible in Appendix IV to these rules, to the
borrower and by affixing the possession notice on the outer door or at such conspicuous
place of the property.
Appendix IV to the said Rules which contains the Form in which the Possession Notice is
to be issued by the Bank, steers clear any doubt that one may have. Para 2 and 3 of the
Format of Notice under Appendix IV reads as follows:
The borrower having failed to repay the amount, notice is hereby given to the borrower and
the public in general that the undersigned has taken possession of the property described
herein below in exercise of powers conferred on him/her under Section 13(4) of the said
Ordinance read with rule 9 of the said Rules on this... day... of the year....
The borrower in particular and the public in general is hereby cautioned not to deal with the
property and any dealings with the property will be subject to the charge of the... (Name of
the Institution) for an amount Rs... and interest thereon.

It interpreted the said provision in

a very wide and liberal way. It used the golden rule of interpretation and the rule of reasonable
construction (that the exclusive reliance on bare dictionary meaning of words may not
necessarily assist a proper construction of the statutory provision in which the words occur
while interpreting the scope) to the words notice to be given to public and said that the
aforesaid mentioned rule authorized the Bank to publish the photograph of the borrower in the

9Shankarlal Agarwalla vs State Bank of India, (AIR 1987 Calcutta 29)


13

Newspaper and it would not lead to the invasion of borrowers privacy. It explained that the
said right was in the interest of the bank as well as the public.
It further went on to uphold this right of the bank under the Right to Information Act under
Section 3 10 and Section 4 (2) of the Act11. It said the every citizen has the right to information
and the Bank being Public Authority have a duty to disseminate information even suo moto. It
failed to give a harmonious construction to both the rights i.e. the right of privacy of a
borrower and the right of the bank to disclose information to the public under the Sarfaesi Act.
The publication of the photograph could be avoided by just disclosing to the public that the
said borrower was a defaulter.
The Court further observed the fact that Section 8 lays down certain exemptions to disclose
the information and one of them being information available to a person his fiduciary
relationship, unless the competent authority is satisfied that the larger public interest wants the
disclosure of such information. It used a strict interpretation of the said section and said that
the disclosure would be in larger public interest. It went on to see the every object of the RTI
Act was to disclose information to public which was in the interest of the society at large.
The disclosure of the photograph of the defaulted borrower was in the interest of the public at
large. However the researcher does not find the reasoning for publishing the photograph of
the publisher as valid. If there are too conflicting Acts or Statutes the Courts should give a
harmonious interpretation in order to give effect to both The Court could have simply allowed
the publishing of the information of default and other related information which is in the
interest of the public but publishing a photograph might lead to invasion of his privacy.

10 Section 3: Subject to the provisions of this Act, all citizens shall have the right to information.
11 It shall be a constant endeavour of every public authority to take steps in accordance with the
requirements of clause (b) of sub-section (1) to provide as much information suo motu to the public at
regular intervals through various means of communications, including internet, so that the public have
minimum resort to the use of this Act to obtain information.
14

CHAPTER 4: CASE ANALYSIS OF R. SUKANYA VS. R.


SRIDHAR AND ORS.
R. Sukanya vs. R. Sridhar and Ors 12
4.1 FACTS: The petitioner is the wife of the first respondent. The petitioner an original
petition to restrain the respondents 2 to 5 in any manner printing or publishing any
proceedings relating to the institution of the petition filed by the petitioner before the Family
Court or carry any other recital as a news item in the telecast or their respective publication
and to punish them for any such violation. The learned trial Court Judge dismissed the said
Interlocutory application on the ground that the respondents have not contravened the
provisions of Section 22 of the Hindu Marriage Act, they are not liable for any punishment to
be made under the provision of Hindu Marriage Act, and if they contravened the said
provision action has to be taken in a different forum. Aggrieved over the said order, the
petitioner filed a revision petition.
4.2 ISSUE: Whether the petitioners can publish matters related to matrimonial affairs of
individual.
4.3 CONTENTIONS: The learned Senior Counsel for the petitioner contends that in view
of Section 22 of Hindu Marriage Act, 1955 the proceedings shall be conducted in camera in
the Family Court and such proceedings should not be printed or published in any manner
except a judgment rendered by a High Court or of the Supreme Court with the prior
12 R. Sukanya vs. R. Sridhar and Ors , AIR 2008 Mad244

15

permission of such Courts. The contention of respondents 2 to 5 is that publication of news


items with regard to the Court proceedings is a fundamental right and the same cannot be
curtailed by an order of injunction or stay.
4.4 CONCLUSION: In the present case the Court explained the right to privacy in
matrimonial disputes and explained how no has the right to publish anything relating to the
same. The court first went on to explain what is right to privacy and its extent and scope. It
quoted Article 12 of Universal Declaration of Human Rights which states that "No one shall
be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to
attacks upon his honour and reputation. Everyone has the right to the protection of the law
against such interference or attacks."
It further went on to explain that freedom of speech and expression under article 19 (1) (a)
includes right not only to speak but also right to publish, print and distribute information. It
further went on to ask Whether right of freedom of speech and expression guaranteed
under Article 19(1)(a) of the Constitution of India can simply be exercised to invade into the
privacy of life, which is exclusively reserved to an individual? Whatever transpires in
between the litigants to a matrimonial dispute in a Court of law can it be made public? The
Court explained that answer to all the queries would be that rights guaranteed under Article
19(1) (a) are subject to reasonable restrictions imposed in the Constitution of India and the
laws framed thereunder. Thus it recognized the fact that an individual has a right to freedom
to publish but it is subject to reasonable restriction. It upheld both the rights.
The Courts said that,
It is well accepted that one person's right to know and be informed may violate another's
right of privacy. In other words, disclosure of certain facts, events, actions, photographs,
and videotapes, in any form of media, print or celluloid, internet would cause
embarrassment, agony emotional stress, to a person of reasonable sensitiveness. 'Right of
Privacy' in other words can be said "to be let alone". What is information to others
according to a journalist, Could be a personal and sensitive information to an individual in
a litigation relating to a matrimonial dispute. The boundary between freedom of press and
privacy of individual is the "Lakshman Rekha" and if the media crosses the line of
boundary, the invasion starts. To Strike a balance between these two competing interests is
difficult

16

It recognized the fact that right to privacy and freedom to publish and receive information are
conflicting rights and the boundary is very thin and if the media crosses it, invasion of
privacy starts. The courts said that it is very difficult to give a harmonious effect to both these
rights i.e. to give effect to both these rights is very difficult.
It explained that media should publish the kind of information which law permits. There are
restrictions imposed on the same and shouldnt cross it. It went on to further state some of the
Statutes to explain the reasonable restrictions on media/individual/press to publish
information.
It explained statues which recognize the right to privacy and do not allow the publication of
the said matters. Section 33 of the Special Marriage Act (43 of 1954) deals with the
proceedings to be in camera and may not be printed or published.

Section 36 of the

Children Act, 1960 deals with the Prohibition or publications of names, etc., of children
involved in any proceeding under the Act. Sections 3 and 4 of the Indecent Representation
of Women (Prohibition Act), 1980, Prohibits the advertisements containing indecent
representation of woman: and does not allow any person to publish, or cause to be published,
or arrange or take part in the publication or exhibition of, any advertisement which contains
indecent representation of women in any form. Section 337 of the Code of Criminal
Procedure states that

the inquiry into and trial of rape or an offence under Section

376, Section 376-A, Section 376-B, Section 376-C or Section 376-D of the Indian Penal
Code (45 of 1860) shall be conducted in camera and no one can publish anything related to
the same. Section 22 of Hindu Marriage Act states that the proceedings under the Act
should be conducted in camera and shall not be lawful for any person to print or publish any
matter relates to such proceedings.
The courts went to state that the intent of these legislations is to maintain secrecy in respect
of certain proceedings or inquiry and protect women and children from invasion of their right
of privacy thus applying the purposive rule of interpretation. It recognized the fact that the
said provisions were meant to protect the privacy of women and children and the media
cannot override the very purpose of these provisions. It stated Visualizing the adverse
effect on the women and children and exploitation of the vulnerable section of the society,
the legislators have imposed reasonable restriction on the freedom of the media and
press. From these words we can see that the Court have applied the mischief rule of
interpretation.

17

Court further went on to state that the very purpose of the aforesaid mentioned Sections were
to protect the basic human right to not to allow the media to invade a persons privacy thus
the right of the media to publish cannot override the purpose of the right to privacy
guaranteed to one under the aforesaid mentioned cases. It stated it is a fundamental right and
should not be invaded by the media. From this it can be seen that it went on to give purposive
interpretation of the Statues in order to recognize right to privacy.
The Court in the present case said that, Media attention should be towards exposing
corruption, nepotism, law breaking, abuse or arbitrary exercise of power, law and order,
economy, health, science and technology etc., which are matters of public interest. The
"Lakshman Rekha" or the "line of control should be that the publication of
comments/information should not invade into the privacy of an individual, unless
outweighed by bona fide and genuine public interest. It recognized that the media the
purpose of the media is to give information to public which is in their interest and should not
override the purpose of the right to privacy.
It went on to explain that media can only publish matter only if it is in the interest of the
public. When the public at large has no legal right to impinge upon the marital privacy, the
press or any other media cannot claim a better right to publish in newspaper, magazine or any
other form of media, in exercise of freedom of speech and expression.
In the present case the petitioner had filed a suit because the respondents published matter
related to her dispute in matrimonial affairs. The petitioner contented that Section 22 (1) of
the Hindu Marriage Act states that proceedings should be in camera and it shall not be
lawful for any person to print or publish any matter to any matter. The Court went on to
explain that the word proceeding means every proceeding. The Court cited a landmark
judgement, Babu Lal v. Hazari Lal Krishori Lal 13 in which it was held that the word
"proceeding" is a very comprehensive term and generally speaking means a prescribed cause
of action for enforcing a legal right. It is not a technical expression with a definite meaning
attached to it, but one the ambit of whose meaning will be governed by the statute.
The Court further stated that the expression "any matter in relation to any such proceeding"
should be given the widest import and it has to be given full effect to and when it is read in
conjunction with the words "every proceeding" occurring in the beginning of the section. It
considered the scope of the Act and said it covers matters between the Hindus relating to
13Babu Lal v. Hazari Lal Krishori Lal, (1982) 1 SCC 525
18

relief of divorce and Judicial separation, alimony, temporary or permanent, the lis being
purely inter-se, reading of the Section in its entirety in its context, reflect the intention of the
legislation, primarily sought to be achieved. The courts said, The language employed in
Section is plain and unambiguous and it covers every proceeding under the Act.
Hence the court used the literal rule in interpreting what matters of the proceeding can be
published and said that it covers ever matter and non can publish anything as it would
infringe the right to privacy which is recognized by the said section and also by the Article
21.
Finally the Court concluded by saying that
The right of privacy created by the statute has to be preserved. The very inception of the
provision, Section 22 in the Hindu Marriage Act makes it clear that matters pertaining to
matrimonial affairs are intended to be conducted 'in camera' and not intended to be
divulged to others, except publication of the judgment with the leave of the Court. Right of
privacy in matrimonial matters between the parties in litigation under Marriage Acts is
personal to the litigating parties. Thus it is manifestly clear that the legislature has
intended to guard the right of privacy in relation to matrimonial matters and it is a settled
legal position that the real meaning and effect should be given to the words employed in
the Statute. In the light of language employed in the Statute, the right of privacy is so
fundamental to the individual excepting to the extent provided under the Marriage Acts. Of
course, we should not forget the role of our independent press and media in coming out
with revelations of public interest, resulting in societal changes. As the freedom of the
press is for the dissemination of information of public interest and public affairs, those
which are not related to the above, but involving the marital relationships of the parties to
a litigation should not be published or telecast, as it is prohibited under law. Publication of
the proceedings meant to be in camera will affect the constitutional liberty guaranteed to
the individual and it would be an invasion of his right of privacy. When Section 22(1) of
the Act prohibits printing or publishing any matter in relation to any such proceeding
arising under the Act, the Family Court or any other competent Court dealing with
matrimonial matter, under the Hindu Marriage Act, has inherent jurisdiction to issue an
order of injunction or any such direction to give full effect to the statutory provision
From this we can see that the Court used the literal rule of interpretation and said that if the
words in the in the Section provide that nothing should be published related to the said matter
19

then nothing should be published. It said that it is clear that the said Act intends to safeguard
the privacy of the litigating parties under the Hindu Marriage Act which is itself clear from
the words given in the provision.

20

CHAPTER 5: CONCLUSION
Louis Brandeis J in a celebrated judgment has said that right to privacy is the right most
valued by civilized men.14 Lord Hoffmann 15 has observed in relation to the complaints
against media that there is no logical ground for saying that a person should have less
protection against a private individual than he would have against the state for the publication
of personal information for which there is no justification 16. The rights to privacy and to
freedom speech appear to be of equal value. A proportionate analysis should be applied to
both, so by using various ruled of interpretation the courts answer whether it was necessary
to restrict publication in order to protect privacy, and vice versa, whether to allow the
publication would disproportionately sacrifice the individuals privacy.
The Constitutional and legal rights, especially the basic right of privacy, which is an inherent
right of being left alone in the solace of privacy is the most affected right of all rights violated
by the media and individuals who publish matters. Press has further developed a pseudo
mechanism of escapism, when it comes to violation of privacy by pleading ignorance of the
folly committed or by contending its their rights to publish. The fact remains that the damage
to the image of the victim has already been done and there is no effective remedy to remove
this damage neither from the part of the media nor by the government. While the right to
freedom of press has undergone great progress and developed today as a powerful lobby, the
equal and opposite right of an individual to be protected against unwarranted intrusions by
press into their privacy has shrinked today and finds no established independent place in the
Indian Constitution. The freedom to publish is also an important right as it keeps the public
informed and matters published may be in the interest of the public. It is a fundamental right
guaranteed under the Constitution. However there are many cases in which both right are
conflicting. The judges in the above three cases analyzed have at their level best tried to evensteven both the rights. Where such harmonious interpretation was not possible they have
applied different rules to find out which right will prevail and given proper reasoning for the
same. They have gone into the intent of the Legislation which recognizes privacy and they
have also seen whether the said matter can be published. The judges have balanced both the
14 Olmstead v. US 277 US 438
15 In Campell v. Mirror Group Newspapers ltd [2004] 2 AC 415
16 Richard Clayton, Hugh Tomlison; Privacy and Freedom Of Expression, 2010 Edn (Oxford
University Press. 2010)
21

rights by taking into consideration public interest, morale, victims of sexual offences, public
person. At the same time the Courts have not recognized right to privacy if the matter needs
to be published. The Courts have impeccably balanced the rights and when not possible
looked into the purpose of the said Legislations and the rights in order to ascertain which one
will triumph.
In the first case the judges have harmoniously constructed both the rights. It went into the
purpose of the right when one prevailed over the other. It has tried to give effect to both the
rights. In the second case the courts used the purposive rule of interpretation and held that the
banks had the right to publish photograph of the defaulted borrower and held that right to
privacy is not absolute. In the third case the Court explained the right to privacy in
matrimonial disputes and explained how no one has the right to publish anything relating to
the same. It stated that the intent of these legislations is to maintain secrecy in respect of
certain proceedings or inquiry and protect women and children from invasion of their right of
privacy thus applying the purposive rule of interpretation. In this judgement the courts said
that it is very difficult to harmoniously construct both the rights. Hence we can see that in the
first judgement the court has laid down principles which harmoniously gives effect to both
the rights. In the second judgement the courts have upheld the right to publish and in the third
case the courts have upheld the right to privacy and said that harmonious construction of both
the rights is very difficult.
In the landmark case of Auto Shankar case17, a question concerning freedom of press to
publish vis- a- vis the rights to the privacy of the citizens of this country was raised. It also
raised a question as to the parameters of the right of the press to criticize and comment on the
acts and conduct of public officials. In this judgement some principled were laid down which
is followed as a precedent is many cases. These principles have been the basis of the
judgement of many cases when such a conflict arises. The Court explained that it was
important to strike a balance between the freedom of the press and the right to privacy. In
this case the Court has very beautifully striked a balance between these two conflicting rights.
The Courts have used the harmonious rule of interpretation in order to give effect to both the
rights. The Courts recognized the right to privacy given under the Constitution. It said that ,
it is a right to be let alone. It further said that a citizen has a right to safeguard the privacy of
his own, his family, marriage, procreation, motherhood, child bearing and education among
others. It also recognised the fact that none can publish anything concerning private affairs.
17 R. Rajagopal v. State of T.N, 1995 AIR 264

22

But also laid down certain exceptions to this. It said that the position will however be
different if one voluntarily invites or raises a controversy. From this we can see that the
Courts have recognized both the rights. It also explained the purpose of both the rights. It said
that both are conflicting but a proper balance should be created in order to give effect to both
the rights. It hence laid down circumstances in which matters which can be published and
which will not invades one privacy and matters which cannot be published. This judgement
has balanced both the rights and appreciated its importance in the present era. The judgement
also went on to explain that the publication concerning about the aforesaid mentioned matters
can be published if it is based upon public records. It stated that ... once a matter becomes a
matter of public record, the right to privacy no longer subsists and it becomes a legitimate
subject for comments. It further said that, an expectation should be carved out in this rule,
female victim of a sexual assault, kidnap, adduction or any like offence should not be
subjected to the indignity of her name and the incident being publicised in press/media.
From this we can again infer that the Courts have attempted to achieve equivalence. The
judgement recognized the fact that if a matter is published based on public records then it can
be published but it again put forth an exception that matters related to the female victims in
the aforesaid mentioned matters cannot be published even if it is based on public records,
thus it can be said that the Courts have harmoniously interpreted both the rights and set forth
reasonable restrictions on one in order to protect the other. Earlier the public officials used to
get away with the wrongs committed by them and the media used to fail to publish matters as
they would claim their right to privacy. In this case the Courts said that matters related to the
acts and conduct relevant to the discharge of official duties of public officers can be
published. It further explained that in matters not relevant to the discharge of his duties, the
public officials enjoy the same protection as any other citizen. The Courts in this case have
very well used the principal of harmonious construction. It has certainly given effect to both
the right. Many a times the media has published private affairs of the public officials and
many a times a public official has stopped the media from exposing his corrupt practices by
stating that it infringes the right to privacy. This judgement has given proper direction to such
matters. It has recognized the private lives of public officials as well as recognised the right to
publish matters related to in discharge of their duty can be published thus recognizing the
rights of individuals/ media to publish such matter. This case concomitantly upheld both the
right. It is an example set for other cases how to harmoniously construct two conflicting
provisions. This judgement has advanced the goals of justice and set forth a good precedent
which is been followed till date.

23

In the second case, the right of the Bank to adopt any lawful method for the recovery of its
dues, including the publication of the photograph of the defaulter has come directly into
conflict with the right to privacy and dignity of the borrower, which has now come to be
recognised as part of the right to life guaranteed under Article 21 of the Constitution. In this
judgement the Court held that the Bank had the right to publish the photograph of the
defaulter under the Securitisation and Reconstruction of Financial Assets and Enforcement of
Security Interest Act, 2002. It went on to explain the purpose of the Act. The Court in this
judgement explained the purpose of the Securitisation and Reconstruction of Financial Assets
and Enforcement of Security Interest Act, 2002. It stated that in the statements and objectives
of the Act, the Law makers took note of the fact that the Banking and Financial Sector in our
country do not have a level playing field as compared to other participants in the Financial
Markets in the World and that our existing legal frame work relating to commercial
transactions has not kept pace with the changing commercial practices and financial sector
reforms. Therefore, obviously with a view to keep pace with the changing commercial
practices and financial sector reforms, the Banks appear to be adopting new techniques, one
of which is the issue on hand viz., a threat to publish photograph of the defaulters in
Newspapers. It thus tried to explain the object and the purpose of the Act. While upholding
the right to publish under sarfaesi Act which was in conflict with the petitioners right to
privacy, it used the mischief rule which states that if there is any confusion or conflict the
purpose of the Act should be considered. In India many a times people borrow money from
the banks and then fail to bay back the money. They then go on to make contracts with people
who do not know that he/she is a defaulter and later on get swindle and conned by such
defaulters. Thus it is in the interest of the general public that they should be aware of such
defaulters. Ofcourse the banks have a duty to maintain secrecy with matters realted to their
customers but such publication is in the interest of the public and Banks at large. In
Shankarlal Agarwalla vs State Bank of India 18 and Kattabomman Transport Corporation
Ltd. v. State Bank of Travancore 19 also it was held that the banker has an obligation to
secrecy and that the banker will not divulge to third person without the express or implied
consent of the customer either the state of the customer's account or any of his transactions
with the bank unless the banker is compelled to do so by order of a Court or the
circumstances give rise to a public duty of disclosure or protection of the banker's own
interest requires it.. In Tournier's case, (1924) 1 KB 461, Atkin, L.J., considered that the right
18 AIR 1987 Cal 29
19 MANU/KE/0077/1992
24

to disclose exists "to the extent to which it is reasonably necessary .... for protecting the bank,
or persons interested, or the public, against fraud or crime"20. Thus letting the banks publish
the photograph of the defaulting borrower is in the interest of the public at large thus the said
judgement the goals of justice. The courts have recognized the duty of the Banks to maintain
privacy but if it is in the interest of the public at large to be informed then right of the Bank to
publish was held. Here the courts went to look into the purpose of the Sarfaesi Act when
harmonious interpretation was not possible. If the Banks wouldnt have taken such steps, then
the public would be conned by the defaulter and also the customers wouldnt be scared and
would continue to do the same. This right of bank to publish the photograph is interest of the
public at large and the one cannot claim any right absolutely and reasonable restrictions
should be put. The case has very well advanced the goals of justice. People cannot claim
privacy if the matters published is at the interest of public at large. There is a hullabaloo that
media is invading privacy. People are claiming privacy at the expense of the public. This case
has very well explained that defaulting borrowers cannot claim privacy, if this would be the
case then the public would be suffer. The Courts have very well recognized both the rights
but given proper reasoning for advancement of justice as to why right to publish will prevail
and the researcher totally agrees with the said decision. This judgement has set an exemplary
precedent.
In the third case the petitioner had filed a suit because the respondents published matter
related to her dispute in matrimonial affairs. The petitioner contented that Section 22 (1) of
the Hindu Marriage Act states that proceedings should be in camera and it shall not be
lawful for any person to print or publish any matter to any matter. The courts recognized that
that one person's right to know and be informed may violate another's right of privacy. It said
that these two rights are very conflicting as what is information to others according to a
journalist, Could be personal and sensitive information to an individual in a litigation relating
to a matrimonial dispute. It stated that, The boundary between freedom of press and
privacy of individual is the "Lakshman Rekha" and if the media crosses the line of
boundary, the invasion starts. To Strike a balance between these two competing interests is
difficult. Thus holding that harmonious construction is very difficult in such cases.
It recognized both the rights and said that both the rights are very important. However it said
to give effect to both in the present case is not possible. It then went on to look into the
purpose of the said Legislation. It explained statues which recognize the right to privacy and
do not allow the publication of the said matters. Section 33 of the Special Marriage Act (43 of
20 J. Milnes Holden', The Law and Practice of Banking , Volume 1 (at page 67)
25

1954) deals with the proceedings to be in camera and may not be printed or published.
Section 36 of the Children Act, 1960 deals with the Prohibition or publications of names, etc.,
of children involved in any proceeding under the Act. Sections 3 and 4 of the Indecent
Representation of Women (Prohibition Act), 1980, does not allow any person to publish, or
cause to be published, or arrange or take part in the publication or exhibition of, any
advertisement which contains indecent representation of women in any form. Section 22 of
Hindu Marriage Act states that the proceedings under the Act should be conducted in camera
and shall not be lawful for any person to print or publish any matter relates to such
proceedings. In the this case the courts went to state that the intent of these legislations is to
maintain secrecy in respect of certain proceedings or inquiry and protect women and children
from invasion of their right of privacy thus applying the purposive rule of interpretation. It
recognized the fact that the said provisions were meant to protect the privacy of women and
children and the media cannot override the very purpose of these provisions. It stated
Visualizing the adverse effect on the women and children and exploitation of the
vulnerable section of the society, the legislators have imposed reasonable restriction on the
freedom of the media and press. From these words we can see that the Court have applied
the mischief rule of interpretation.
The said judgement is a good judgement as it went into the very purpose of the Legislation.
Media should publish the kind of information which law permits. There are restrictions
imposed on the same and shouldnt cross it. It went on to further state some of the Statutes to
explain the reasonable restrictions on media/individual/press to publish information. The very
purpose of the provision and law would get defeated if the Courts would have recognized the
right to publish over the right to privacy. Matrimonial cases are private affairs and publishing
them would be of no interest to the public at large, it will in fact invade the privacy of person.
Hence the judgement is a good judgement which has put forth an example that matrimonial
issue are private affairs and the media cannot claim absolute privacy.

26

CHAPTER 6: SUGGESTIONS
Right to privacy is an essential component of right to life and personal liberty
under Article 21. Right of privacy may, apart from contract, also arise out of a particular
specific relationship, which may be commercial, matrimonial or even political. Right to
privacy is not an absolute right; it is subject to reasonable restrictions for prevention of crime,
disorder or protection of health or morals or protection of rights and freedom of others.
Where there is a conflict between two derived rights, the right which advances public
morality and public interest prevails. There is no legislative effort to codify and protect
privacy till date neither in the Constitution nor in any legislation. The victims had to always
depend on the courts discretion and interpretation of privacy, when the question of
infringement of privacy was considered. This has been a loophole since the time of
independence. It is therefore recommended that the Constitution should be amended to
include this right to Privacy as the first step. Once the grundnorm is amended, the position of
privacy will be legally at par with international standards. Then is the need to enact a Privacy
Act.
The Media/ individuals have right to freely publish and express their view, but as seen as they
often invade ones privacy. The only available protection is in the shape of decency, morality,
defamation, as found in Article 19 (2). Again in this Article, there is no express term
privacy. It only incorporates certain attributes of privacy. Therefore, it is advocated that in
this scenario where Indian media no more carries the flag of truth but instead carry the goal
of market realization, the government should make an effort to create privacy as an important
right of an individual. The present Article 19(2) states that nothing in sub clause (a) of clause
(1) shall affect the operation of any existing law or prevent the state from making any law in
so far as such law imposes reasonable restrictions on the exercise of the right conferred by the
said sub clause in the interests of the sovereignty and integrity of India, the security of the
state, friendly relations with foreign states, public order, decency or morality or in relation to
contempt of court, defamation or incitement to an offense. It is suggested that Article 19(2)
instead should state nothing in sub clause (a) of clause (1) shall affect the operation of any
existing law or prevent the state from making any law in so far as such law imposes
reasonable restrictions on the exercise of the right conferred by the said sub clause in the
interests if the sovereignty and integrity of India, the security of the state, friendly relations
with foreign states, public order, decency or morality or privacy or in relation to contempt of
court, defamation or incitement to an offense. These amendments if made would surely
uplift the morale of an ordinary citizen of a country instead of living in fear of anytime being
27

pulled out of their secured homes to be scandalized in the open public by the media. Also
when conflicts arise between right to privacy and freedom to publish and both the parties
claim rights on either side under various statues, the courts will get a proper direction in
ascertaining the same and also it will be clear to the media and individuals that their right is
expressly subject to the private affairs of individuals and this will help solve the conflict to
some extent.
There should be proper guidelines laid down when both the rights cannot be harmoniously
contrasted and criteria to decide which one should prevail. However the Courts should first
attempt to harmoniously give effect to both.

28

BIBLIOGRAPHY
Websites
-

http://cis-india.org/internet-governance/blog/freedom-of-expression-and-privacy.pdf
http://scholarlycommons.law.wlu.edu/cgi/viewcontent.cgi?article=3659&context=wlulr
http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=3789&context=fss_papers
http://papers.ssrn.com/sol3/Papers.cfm?abstract_id=1127888
http://ijlljs.in/wp-content/uploads/2014/06/BOOK-REVIEW.pdf
http://manupatra.com
http://westlaw.com

Law Journals
Marsoof, Althaf. "Online social networking and the right to privacy: The conflicting rights of
privacy and expression." International Journal of Law and Information Technology (2011):
eaq018.

Law Reviews
-

Emerson, Thomas I. "Right of Privacy and Freedom of the Press, The."Harv. CR-CLL Rev. 14

(1979): 329.
Volokh, Eugene. "Freedom of speech and information privacy: The troubling implications of

a right to stop people from speaking about you." Stanford Law Review (2000): 1049-1124.
Warren, Samuel D., and Louis D. Brandeis. "The right to privacy." Harvard law

review (1890): 193-220.


Barron, James H. "Warren and Brandies, the Right to Privacy, 4 Harv. L. Rev. 193 (1890):
Demystifying a Landmark Citation." Suffolk UL Rev. 13 (1979): 875.

Books
Seervai., H.M., Constitutional Law of India: A Critical Outlook, 3rdEdition, Vol: 2, 2008.
Jain., M.P., Constitutional Law of India,6th Edn.,2010,Nagpur:lexis nexis, butterwords.
Shukla., V.N., Constitution of India., 10th Edition, Rd. by Singh., M.P.,ReprintMarch,2007, Eastern Book Company: Lucknow.
De., D.J., Interpretation and Enforcement of Fundamental Rights., Eastern Law House:
Kolkata, 2000.

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